Background There was dispute over whether the decision to invoke Article 50 was the prerogative of the government, as the
Cameron government argued, or whether it required parliamentary approval. Article 50 states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements". As Professor Kenneth Armstrong (Professor of EU law at
Cambridge University) points out this is a decision solely for domestic law: whether constitutional requirements have been met is a matter solely for the domestic law of member states. The UK's constitutional requirements for the valid invocation of Article 50 was the entire basis of this litigation, even though this was undertaken without explicit reference to that phrase as in Art 50(1) in the judgments. As will be seen below, it was held that the UK constitutional requirements were that an Act of Parliament need be passed in order to bestow the power on the Secretary of State to invoke Article 50, as the
European Communities Act 1972 had displaced the Royal prerogative to take the UK outside of the EU treaties. The first of the parties to lodge a complaint in the proceedings against the government's intention to
trigger Article 50 without a parliamentary vote was Deir Dos Santos, who launched his action four days after the referendum of 23 June. Miller's claim form was served on 29 July 2016. The law firm
Mishcon de Reya announced that it had been retained by a group of clients to challenge the constitutionality of invoking Article 50 without Parliament debating it. In the proceedings, all parties accepted that withdrawal from the
European Union would have profound consequences in terms of changing domestic law in each of the jurisdictions of the United Kingdom. At the preliminary hearing on 19 July 2016, Sir
Brian Leveson,
President of the Queen's Bench Division, stated that the court gave leave to Dos Santos to stay his proceedings and join as an interested party in Miller's case, and others, such as a group of unnamed clients who were separately represented, would have the option to be interested parties in the claim or
interveners. In the court proceedings, the government contended that it would be constitutionally impermissible for the court to make a declaration in terms that the government could not lawfully issue notification under Article 50 unless authorised by an Act of Parliament, and stated that the declaration now being opposed would trespass on proceedings in Parliament. Questions were also raised over the impartiality of
Lord Neuberger by Brexit MPs and
The Daily Telegraph, as his wife had made a series of tweets criticising Brexit. These allegations were countered by his spokesman, who said that Neuberger's wife's personal views had no effect on Neuberger's ability to interpret the law.
Hearing File:Official_portrait_of_Lord_Thomas_of_Cwmgiedd_crop_3,_2019.jpg|The Lord Thomas of Cwmgiedd(Lord Chief Justice) File:Official portrait of Lord Etherton crop 2.jpg|Sir Terence Etherton(Master of the Rolls) File:Lord_Sales_2019.jpg|Sir Philip Sales(Lord Justice of Appeal) At the full hearing in October, before three judges sitting as a
divisional court (
the Lord Chief Justice,
the Master of the Rolls and
Lord Justice Sales), it was argued for the lead claimant (Miller) that notification under Article 50 would commit the UK to the removal of rights existing under the
European Communities Act 1972 and later ratification acts, and that it is not open to the government, without Parliament's approval, to use the
prerogative power to take action affecting rights which Parliament had recognised in that way. An argument put for the "
expat" Interveners at the hearing was that by the 1972 Act, Parliament had conferred a legislative competence on the EU institutions, and in that way had changed the constitutional settlement in the UK. Responding in the opening submissions for the government, the
Attorney-General (
Jeremy Wright) outlined how the decision had been reached. In support of the contention that when passing the 2015 Act Parliament well knew of the Article 50 procedure for leaving the European Union if that was voted for in the referendum, he said that Parliament had previously dealt with it when the Lisbon Treaty was included in
domestic law by the 2008 Act, and he took the court through the legislation dealing with the European Union and its predecessor, namely: • European Communities Act 1972 (before the
Vienna Convention on the Law of Treaties came into force in 1980) •
European Assembly Elections Act 1978 •
European Communities (Greek Accession) Act 1979 • European Assembly Elections Act 1981 •
European Communities (Spanish and Portuguese Accession) Act 1985 •
European Communities (Amendment) Act 1986 • European Communities (Amendment) Act 1993 •
European Union (Accessions) Act 1994 • European Parliamentary Elections Act 2002 •
European Union (Accessions) Act 2003 •
European Union (Accessions) Act 2006 •
European Union (Amendment) Act 2008 • Constitutional Reform and Governance Act 2010 •
European Union Act 2011 •
European Union (Croatian Accession and Irish Protocol) Act 2013 •
European Union Referendum Act 2015. In further submissions for the government, the lead claimant's primary argument was said by
Treasury Counsel (
James Eadie) to be that it is not open to the executive to use the
prerogative power in such a way as to affect or change current economic law, principally statute law; but the government contended that
the leading case ''
Attorney General v De Keyser's Royal Hotel'' meant that the question about the use of the royal prerogative depended on Parliament's legislative intention. The treaty ratification provisions of the
Constitutional Reform and Governance Act 2010 were in force from 11 November 2010, that is, after the
Lisbon Treaty, including Article 50, was ratified for UK on 16 July 2008, and had come into force on 1 December 2009. While the Act describes "treaty" as an agreement between states, or between states and
international organisations, which is binding under international law, including amendments to a treaty, and defines "ratification" as including acts (such as notification that domestic procedures have been completed) which establish as a matter of international law the United Kingdom's consent to be bound by the treaty, ratification of an amendment to a European Union treaty may involve compliance with the
European Union (Amendment) Act 2008, and there are further provisions under the European Union Act 2011. The Lord Chief Justice described the statutory procedure as "of critical importance". The hearing was concluded on 18 October, when the Lord Chief Justice said the judges would
take time to consider the matter and give their judgments as quickly as possible. In the meantime, the applications of other parties challenging the government in legal proceedings in Northern Ireland's High Court were dismissed on 28 October, but the court was prepared to grant leave to appeal in respect of four out of the five issues.
Judgment The court's unanimous judgment was delivered and published on 3 November. The decision was against the government's contention that the Crown's prerogative allowed giving Article 50 notice, and the court would later decide on the form of declaration it would make. The court described the passing of the
European Communities Act 1972 as the major step of "switching on the direct effect of
EU law in the national legal systems", and reasoned that it is implausible that Parliament's intention was that the Crown should be able to switch it off unilaterally by exercise of its prerogative powers. The judgment stated that the question for the court's decision involved the
constitutional law of the United Kingdom: it was whether the Crown's executive government is entitled to use the Crown's prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union. The court held that the Government had no power to trigger notification under article 50 of the
Treaty on European Union (TEU), because it would remove a series of rights created by Acts of Parliament. The principle of
parliamentary sovereignty required that only Parliament could take away those rights. This is expressed in the
Case of Proclamations (1608), the
Bill of Rights 1688 section 1, and continually confirmed since in cases including
Burmah Oil Co Ltd v Lord Advocate, and
R (Jackson) v Attorney General. The Crown may not alter the domestic law of the UK or modify rights conferred by Parliament. Three categories of rights were :(i) rights that could be replicated by British law (e.g. 28 days' paid holidays under the
Working Time Directive 2003), :(ii) rights of British citizens in other EU member states (e.g. the right to work abroad, or set up a business, under
TFEU articles 45 and 49) and :(iii) rights that could not be replicated in British law (e.g. the right to vote in the
EU Parliament or petition the
EU Commission to enforce
competition law or
environmental law standards in the UK). While the Secretary of State accepted that category (iii) rights would be nullified, the High Court also ruled that all rights in categories (i) and (ii) would also be jeopardised in their effectiveness. The case had come before the court as a "rolled up" hearing, so that both the application for permission to seek judicial review and the substantive merits of the claim were considered at the hearing. Formally, this meant that permission for full judicial review on the substantive merits was granted. The High Court order dated 7 November 2016 declared: "The Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the Treaty on European Union for the United Kingdom to withdraw from the European Union."
Press reaction , The Daily Telegraph, the Daily Express and the Daily Mail'' on 4 November 2016, the day after the High Court decision The High Court decision was met with mixed views in the daily press.
The Daily Telegraph commented that the High Court ruling increased the prospect of an early general election, while the
Financial Times and
The Guardian reported the case as a "blow" or a "setback" to the British government plans. The financial markets reacted by an increasing exchange rate for the
pound sterling against the euro and the dollar, on speculation of a delayed or softer
Brexit. Other news media attacked the presiding judges and questioned their impartiality, the
Daily Mail calling them "
enemies of the people", and on its website describing one judge as "an openly gay ex-Olympic fencer".
The Guardian reported that MPs condemned newspaper attacks on the judges after their Brexit ruling. Former Attorney General
Dominic Grieve described the attacks as "entirely unjustified", and said that "[t]here seems to be a paranoid hysteria around that this is being done [to reverse] the referendum. But it's simply that there has to be a process followed if parliament is to give effect to and express the wish of the electorate." The oath of office (prescribed by the
Constitutional Reform Act 2005) obliges a Lord Chancellor to respect the
rule of law and defend the independence of the judiciary. On 5 November 2016, Truss issued a statement in which she said: "The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality." The oath of office for judges obliges them to "well and truly serve" the Queen and "do right to all manner of people after the laws and usages" of the realm "without fear or favour, affection or ill will". The
Telegraph, in an editorial on 5 December 2016, expressed its regret that the High Court had heard the application at all, "instead of deciding that it was not the business of the judiciary to get involved in what is essentially a political matter" and its concern that "by upholding the lower court's ruling, the Supreme Court justices could find themselves dictating to Parliament – an inversion of the normal constitutional order, with potential consequences for the notion that Parliament is sovereign and thus supreme".
The Guardian commented on 5 December 2016 that the unprecedented number of the panel of eleven justices who would be hearing the appeal and deciding the case was recognition of the constitutional significance and political sensitivity of the appeal. ==Appeal to the Supreme Court==